A legitimate legal framework for prolonged detention?

Obama's speech on "Protecting Our Security and Our Values" today at the National Archives Museum can be read two ways. On the positive -- "hopeful" -- side, most notably you had this passage:

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

On the other hand, you have various lines that ought to be of concern to anyone who does believe in separation of powers; the principle that no US political leader may act in place of judge and jury. I'm only quoting passages of Obama's speech that I found disconcerting (my own commentary in red):

For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. The same extremists?

Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. I thought Bush tried that already.

And that is why I took several steps upon taking office to better protect the American people First, I banned the use of so-called enhanced interrogation techniques by the United States of America. Note: torture was already illegal before Obama banned it.

In short, they [enhanced interrogation techniques] did not advance our war and counter-terrorism efforts - they undermined them, and that is why I ended them once and for all. Because torture clearly didn't serve our purposes.

Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders - highly secure prisons that ensure the public safety. The phrase "justice and national security" suggests that justice alone won't suffice. The implication is that criteria other than justice will determine whether someone stays locked-up. Is that in the Constitution?

. . . .we are treating these cases with the care and attention that the law requires and our security demands. Going forward, these cases will fall into five distinct categories. Obama took an oath to uphold the law of the land, not to do whatever -- in his opinion -- security demands. American law is not something you balance against security. Rather, security is something that happens within the framework of the law.

The second category of cases involves detainees who violate the laws of war and are best tried through Military Commissions. They allow for the protection of sensitive sources and methods of intelligence-gathering; for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts. How do you know whether someone has "violated the laws of war" until he has had a fair trial? Federal Courts routinely have heard cases dealing with sensitive information over the years. Why the Commissions? (By the way, will members of the prior US administration who "violated the laws of war" also go before Military Commissions? Surely even people charged with war crimes have the right to be tried in proper courts.)

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States. As I said, I am not going to release individuals who endanger the American people. Decisions about who can or cannot be released are decisions made by judges, not by a political leader! Who does the president think he is? At least one of Obama's examples is really strange: having "commanded Taliban troops in battle" in 2001 can surely be no grounds whatsoever for depriving anyone of justice in 2009.

. . . .I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we [who is we?] determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. Surely this kind of decision is for the courts alone to make, not merely oversee.

However, it was my judgment - informed by my national security team - that releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war. Lame.

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes." Historically speaking, is terrorism such a unique challenge?

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty, and care, and a dose of common sense. "We need not sacrifice our security for our values!" Was that not the rallying cry of American Revolution? I'm being sarcastic. America was founded by people who decided to put their values before the security afforded by the might of the British Empire.

Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and - in all probability - ten years from now. Neither I nor anyone else can standing here today can say that there will not be another terrorist attack that takes American lives. Yada yada yada.

Obama's remarks today deserve a strong response -- perhaps something like this.